Until moments before U.S. Border Patrol agents shot him dead on the
night of October 10, 2012, Jose Antonio Elena Rodriguez had passed a
pleasant evening in his hometown of Nogales, Mexico. He had visited his
girlfriend, Luz, and watched television with her family; at around
eleven o'clock, he asked Luz if she wanted to join him in his
nightly routine of grabbing a hot dog at the convenience store where his
brother worked. When she declined, he set out alone on the five-minute
walk down International Avenue.

At about the same time, right across the border, a Nogales,
Arizona, police officer named Quinardo Garcia responded to a call about
"suspicious subjects" running south toward the fourteen-foot
wall that divides the two towns. At 11:19 p.m., Border Patrol agents,
including K-9 Officer John Zuniga, arrived as backup.

"I passed Officer Garcia's patrol vehicle and I saw two
male subjects climbing the international fence and were trying to get
over to the country of Mexico," Zuniga wrote in his report. "I
gave them numerous commands to climb clown .... I then decided to deploy
my assigned canine, Tesko, and hold him on a leash and secure the area
in case the male subjects climbed down. Moments later, additional Border
Patrol Agents arrived on the scene."

The two Mexican men were carrying large backpacks, according to the
police report. Garcia and Zuniga stated that they presumed the packs
contained illegal narcotics and that the two men were trying to evade
capture. "I then heard several rocks start hitting the ground and I
looked up and I could see the rocks flying through the air,"
Zuniga's account continues. "As I tried to get cover between a
brick wall and small dirt hill, I heard an agent say, 'Hey your
canine's been hit! Your canine's been hit!'"

Border Patrol agents responded by opening fire across the border
into the dark streets of Nogales, Mexico. No agents or officers claimed
they'd been struck by rocks--the dog was the only one hit. By the
time the agents were done firing, Jose Antonio had received two bullets
to the back of the head; at least six more bullets entered the back of
his body after he fell to the ground.

[ILLUSTRATION OMITTED]

[ILLUSTRATION OMITTED]

He landed facedown on the sidewalk, and died there, outside a small
clinic whose sign read "Emergencias Medicas." He was unarmed,
according to the Nogales, Mexico, police report. Border Patrol
officials, as of this writing, have declined to comment, citing an
ongoing investigation by the FBI, which has also declined to comment.

Fatal shootings by Border Patrol agents were once a rarity. Only a
handful were recorded before 2009. Even more rare were incidents of
Border Patrol agents shooting Mexicans on their own side of the border.
A former Clinton administration official who worked on border security
issues in the 1990s says he can't recall a single cross-border
shooting during his tenure. "Agents would go out of their way not
to harm anyone and certainly not shoot across the border," he says.
But a joint investigation by the Washington Monthly and the
Investigative Fund at the Nation Institute has found that over the past
five years U.S. border agents have shot across the border at least ten
times, killing a total of six Mexicans on Mexican soil.

There is no doubt that Border Patrol agents face a difficult job.
Between 2007 and 2012, twenty agents have died in the line of duty; most
of these deaths were the result of accidents, but four were due to
border violence. For instance, in 2010 Agent Brian A. Terry was struck
down near Rio Rico, Arizona, in the Border Patrol's Nogales area of
operation, by AK-47 fire after he and his team encountered five
suspected drug runners. In 2012, Agent Nicholas J. Ivie was shot by
friendly fire after being mistaken by other agents for an armed
smuggler.

But following a rapid increase in the number of Border Patrol
agents between 2006 and 2009, a disturbing pattern of excessive use of
force has emerged. When I first began to notice this spate of
cross-border shootings, I assumed that at least some victims were drug
traffickers or human smugglers trying to elude capture. But background
checks revealed that only one had a criminal record. As I began to dig
more deeply, it turned out that most of the victims weren't even
migrants, but simply residents of Mexican border towns like Jose
Antonio, who either did something that looked suspicious to an agent or
were nearby when border agents fired at someone else.

In one case, agents killed a thirty-year-old father of four while
he was collecting firewood along the banks of the Rio Grande. In
another, a fifteen-year-old was shot while watching a Border Patrol
agent apprehend a migrant. In yet another, agents shot a
thirty-six-year-old man while he was having a picnic to celebrate his
daughters' birthdays.

As the debate over immigration reform heats up on Capitol Hill,
increased border security will likely be the condition of any path to
citizenship for the millions of undocumented workers now living in the
United States. This makes scrutinizing the professionalism of the Border
Patrol all the more urgent. The picture that emerges from this
investigation is of an agency operating with thousands of poorly trained
rookies and failing to provide the kind of transparency, accountability,
and clear rules of engagement that Americans routinely expect of law
enforcement agencies.

So far, the Border Patrol's cross-border shootings have yet to
attract much international attention. If they continue, however, it is
easy to imagine the U.S. not only being assailed by human rights
activists around the world, but also compromising its standing to
pressure other countries, such as Israel, to refrain from firing on
unarmed citizens across their borders.

In 2006, the Bush administration began rapidly increasing the size
of the Border Patrol, ushering in a fanatic recruitment drive. Customs
and Border Patrol spent millions on slick television ads that ran during
Dallas Cowboy football games and print ads that appeared in programs at
the NBA All-Star Game and the NCAA playoffs. The CBP even sponsored a
NASCAR race car for the 2007 season.

In less than three years, the agency hired 8,000 new agents, making
the CBP one of the largest law enforcement agencies in the United
States. Because qualified recruits were so hard to find, the Border
Patrol had to lower its standards, deferring background checks and
relaxing training regimens. Lie detector tests, which were previously
common practice, were often omitted.

Richard Stana, head of Homeland Security and Justice at the
Government Accountability Office, testified before Congress in 2007 that
the "rapid addition of new agents" would "reduce the
overall experience level of agents assigned to the southwest
border"--and that the CBP would be relying on "less seasoned
agents" to supervise the new recruits. He spoke even more frankly
in an interview on National Public Radio: "Any time we've had
a ramp-up like this in the past, the propensity to get a bad apple or
two goes way up. And if we don't have supervisors to identify those
bad apples, then they stay on board."

At the same time, the CBP has been secretive about the guidelines
its agents are supposed to follow. While a quick Google search will take
you to use-of-force protocols for police departments of such major
cities as New York and Los Angeles, use-of-force guidelines and training
manuals for the more than 21,000 CBP border agents are difficult to come
by. The Department of Homeland Security, which oversees the CBP, turned
down Freedom of Information requests to see their guidelines.

At least this much is known for sure, however: an international
agreement with Mexican law enforcement officials states that U.S. Border
Patrol agents are barred from firing their weapons into Mexico from the
United States under any circumstances. Instead they are supposed to call
Mexican authorities whenever there is an incident on the Mexican side of
the border.

Specifically, agents are supposed to notify the Center for
Investigation and National Security in Mexico City as well as local
Mexican police closest to the incident. The protocol specifically states
that Mexicans throwing rocks or drawing weapons are "time
sensitive" offenses and "requir[e] immediate response from the
Mexican government." Once Mexican officials have been notified,
protocol directs U.S. agents to "vector responding agencies to the
area of the incident."

As the case of Jose Antonio and those of other victims of
cross-border shootings illustrate, however, such niceties are often left
on paper. The Nogales, Mexico, police report indicates that the CBP did
not notify Mexican authorities when they saw two men trying to climb the
border fence back into Mexico, nor did they report that rocks were being
thrown at U.S. agents.

On September 3, 2012, Arevalo Pedroza, a longtime construction
worker, took his family and some friends out for a picnic to celebrate
his daughters' birthdays. Around four p.m., Pedroza pulled into an
outdoor recreational area perched on the southern bank of the Rio Grande
called the Patinadero. Families with children were everywhere. Some were
swimming, some were eating, others were just relaxing in the hot
afternoon sun. Pedroza got busy at the grill.

Meanwhile, 200 feet away, on the other side of the river, a Border
Patrol pontoon boat was floating by, just keeping pace with the flow of
the river. One agent was driving while the other appeared, according to
Mexican eyewitnesses I interviewed, to be scanning the riverbank looking
for something or someone. Then, on the American side, a Latino man
jumped into the river, seemingly trying to evade the agents in the boat
by swimming back toward Mexico. As soon as the agents noticed him, the
driver floored the engine and sped over to block his path, circling him
and creating large waves that made it difficult for him to swim.

"Help me, help me," the man in the water shouted in
Spanish toward the people in the park, who had begun to gather to watch
the unfolding scene. "They are trying to drown me." Waves
washed over his head; on at least two occasions, witnesses say, the boat
ran directly over him. The crowd began to shout at the agents in Spanish
to leave the swimming man alone. Several witnesses told me they were
sure the agents were going to drown him.

Suddenly, a quick series of eight to ten gunshots rang out. At
first, few on the shore could tell where the shots were coming from, but
three Mexican eyewitnesses told me they could see the agents in the
pontoon boat aiming their rifles and opening fire directly at the crowd.

Pedroza's ten-year-old daughter, Mariana, heard a bullet pass
by her head. She described it to me as a sharp sound, like something
ripping the air as it flew past. Without thinking she turned and ran
away from the river as fast as she could. Others in the crowd also fled
for their lives.

The whole incident lasted only seconds. Once the gunshots stopped,
the confused crowd looked back across the river. The agents remained
still for a long minute, still aiming their weapons at the picnickers.
Then a woman began screaming at the agents in English, "That's
against the law! That's against the law!" It was only then
that Pedroza's wife, Isabel, noticed that her husband was lying
flat on the riverbank, faceup, blood pouring from his chest. She spun
around desperately, looking for help. "They shot him!" she
shouted. "They shot him!" She began to wail hysterically.

Other picnickers started shouting obscenities at the agents, who
remained motionless in their boat. By now Isabel was screaming in
disbelief, "They killed him! They killed him!" Others joined
in the screaming and taunting directed at the agents. Finally the agents
silenced their motor, as if trying to hear. As the shouts from the crowd
grew louder, the agents hit the accelerator and fled upriver.

Pedroza remained motionless. His eyes were open, Isabel recalls,
but he was staring blankly at the sky and did not appear to be
conscious. His daughters knelt beside him, trying to comfort him, but he
wasn't responding.

An autopsy conducted by the Nuevo Laredo Police Department later
showed that he'd been shot one time through his right lung. The
Mexican government issued a statement condemning the incident, saying,
"The use of excessive or deadly force by the U.S. Border Patrol in
this matter is unacceptable."

The Border Patrol also issued a statement, saying the shots were
fired because the agents had been "subjected to rocks being thrown
at them from the Mexican side." The Border Patrol has said that an
FBI investigation of the incident is under way, but none of the
witnesses I spoke with, including Pedroza's wife and his friend
Josue Gonzalez, who was by his side when he died, say they have ever
been contacted. "Even if rocks were thrown," Gonzalez told me,
"the Border Patrol agents were so far away on the other side of the
river, they couldn't even reach them"

Of the ten incidents of cross-border shootings that we have
uncovered, Border Patrol agents claimed in all but two cases that they
had fired their weapons in response to rocks being thrown. Of the six
that resulted in fatalities, all but one involved alleged rock throwing.

Amnesty International, Human Rights Watch, the ACLU, the United
Nations, and even the U.S. State Department have all denounced lethal
force against rock throwers in international areas of conflict. For
decades, Western diplomats have likewise condemned the use of lethal
force against civilian rock throwers.

Commenting in 2000 on the Israelis' use of force against
Palestinian rock throwers, Mary Robinson, the UN high commissioner for
human rights, said, "The superior firepower [by Israel] has been
used, I believe, excessively--particularly against youths throwing
stones." Since then, the Israeli Defense Forces adopted an official
policy (not consistently implemented) of deploying nonlethal rubber
bullets and other crowd-disbursement methods instead of using deadly
force to deal with rock throwers.

More recently, when Egyptian soldiers confronted stone-throwing
protestors in Cairo's Tahrir Square with lethal force during the
uprising against Hosni Mubarak, then Secretary of State Hillary Clinton
and UN Secretary General Ban Kimoon both condemned the
"excessive" use of force. Clinton said she was "deeply
concerned" about the violence and urged Mubarak's security
forces "to respect and protect the universal rights of all
Egyptians."

Already, the Border Patrol's killing of Mexicans on their own
soft has complicated and compromised U.S. diplomacy. In June 2011,
Border Patrol agents shot another Mexican national, Alfredo Yanez,
claiming that he had been throwing rocks and a nail-studded post from
the Mexican side of the border. In response, then Mexican President
Felipe Calderon condemned the killing publicly and, in a meeting with
Secretary Clinton, demanded that U.S. authorities swiftly investigate
the "use of firearms to repel an attack with stones."

Sixty organizations, including the ACLU, Amnesty International, and
Catholic Charities, responded in kind to the Yanez killing, signing a
joint letter to Congress asking for an investigation and calling for an
immediate end to the Border Patrol practice of shooting at rock
throwers. "Deadly force should always be an action of last resort,
and only used if an imminent risk of death is present and no other tools
exist to ameliorate a dangerous situation," reads the letter.
"To shoot stone throwers is exceptionally disproportionate and
inhumane."

On July 7, 2012, Juan Pablo Santillan, a thirty-year-old father of
four, and his twenty-eight-year-old brother Damian were walking along
the southern bank of the Rio Grande collecting firewood for their mother
to use in cooking tamales. Across the river they noticed some Border
Patrol agents about seventy yards away, high on an embankment, and tried
to ignore them. "Border Patrol agents would always use their
bullhorn and shout obscenities at us across the river," Damian
recalls. "They would call us beaners and stupid Mexicans. I
didn't like being around them." Damian's mother told me
she stopped bringing her grandchildren to the river to swim because
Border Patrol agents constantly harassed them.

Damian had his back to the agents when he heard what he thought
were several gunshots. He instinctively dove to the ground. Seconds
later he looked up and saw his brother lying on the ground faceup. Blood
was pouring from his chest, and he was not moving.

[ILLUSTRATION OMITTED]

Damian recalls looking away from Juan Pablo's bleeding body,
across the river, and says he noticed several Border Patrol agents
staring his way. One was holding what appeared to be a large rifle with
a scope on it, pointed at him. He began to panic. He needed to take
cover for his own sake, but his brother might be dying. He dashed to his
brother's side. If he got shot, well, he would die trying to save
his brother's life. But what to do? He was far from a hospital,
even from a phone.

In desperation he yelled out at the agents across the river, one
agent's rifle still pointed at him. "My brother is
dying!" he cried in Spanish. The agents, he says, did not respond,
and instead started to move away from the scene. "Can you please
help me!" That was when one agent stopped, according to Damian, and
yelled back, also in Spanish, "Let the dog die."

The official Border Patrol report claims that Juan Pablo Santillan
had a gun and aimed it at the agents, and that they fired in
self-defense. But Mexican officials, and the five neighbors and family
members I spoke with, all told me unequivocally that Juan Pablo did not
have a gun that day and had never even owned one. According to an
investigation conducted by Mexican police, a gun was not found on his
body or at the scene.

A Year ago, the border advocacy group No More Deaths published an
extensive report on migrants' treatment by U.S. Border Patrol
agents, called "A Culture of Cruelty," based on 4,130
interviews with 12,895 individuals who had at one point been in Border
Patrol custody. The group identified widespread patterns of abuse,
including denial of water to migrants who were caught after wandering
days in the desert, denial of food, failure to provide medical
treatment, verbal abuse, and physical abuse. The report recounts
instances of abuse including Border Patrol agents threatening detainees
with death, enforcing stress positions and sleep deprivation, turning
cell temperatures down to frigid levels, and kicking, beating, and
sexually assaulting detainees.

Repeatedly, CBP officials have declined to answer my questions
about any of these specific incidents. The agency has instead issued
statements like this one, in response to my questions about
Santillan's death:

U.S. Customs and Border Protection (CBP) respects
the sovereignty of the country of Mexico and its territorial
integrity. Without the express authorization of
the Mexican government, CBP personnel are not authorized
to physically cross the international boundary
when conducting operations. Regarding the use of
firearms on the border, CBP law enforcement personnel
are trained, required to comply with and be thoroughly
familiar with all aspects of the use of force and firearms
guidelines.

One former CBP commissioner, W. Ralph Basham, who served from 2006
to 2009, briefly spoke with me some months ago, when I was reporting on
a Border Patrol killing on the U.S. side of the border. "I'm
certainly sympathetic to those individuals who lose their life as the
result of some of these activities," he said, but added,
"These agents have to be able to protect themselves when they feel
like their life is being threatened, or the life of other
officers." Still, a 2010 Associated Press investigation found that
border agents are assaulted at a dramatically lower rate than police
officers (3 percent compared with 11 percent)--and with far less serious
weapons, such as rocks or knives rather than firearms.

According to a 2004 CBP use-of-force document I obtained through a
source, "Verbal warning to submit to authority shall be given prior
to use of deadly force if feasible, and if to do so would not increase
the danger to the officer of others." Yet in Juan Pablo
Santillan's case, and in the nine other cross-border shootings I
have uncovered over the past five years, I have found no evidence that
verbal warnings were given before agents opened fire into Mexico. In
fact, none of the agents involved have even publicly claimed that they
issued such warnings.

Details of agent shootings are also protected from public scrutiny
by the CBP. If an investigation is undertaken internally, it is not made
public. If an agent is disciplined, that is not made public either. If
the CBP refers a case to the Justice Department for a potential criminal
investigation, that, too, is kept from the public.

Convictions are on the public record, but they are exceedingly
rare. The last one I could find was that of two Border Patrol agents,
Ignacio Ramos and Jose Compean, who were tried and convicted for
shooting an unarmed, fleeing drug smuggler in the buttocks in 2005. The
Bush administration ended up commuting their sentences in the face of
public pressure, and both former agents are now free. Since then, no
agents have even been disciplined for misuse of their firearms--at least
so far as the public can know, since the CBP refuses to disclose data on
either the number of shootings by officers or the number of related
disciplinary actions.

Sergio Adrian Hernandez Guereca was a small-framed fifteen-year-old
who loved soccer and wanted to be a police officer when he grew up. He
lived in a humble three-room cinderblock house on the outskirts of
Juarez, Mexico, with his mother, brother, and two sisters.

On June 6, 2010, Hernandez went with his brother to pick up his
paycheck at a furniture factory near a concrete canal that contains the
Rio Grande as it passes along the border between Juarez and El Paso,
Texas. Meanwhile, as captured on an eyewitness video, Border Patrol
Agent Jesus Mesa Jr. was patrolling the U.S. side of the border on
bicycle when he spotted a handful of Mexican men trying to cross into
the United States.

[ILLUSTRATION OMITTED]

Mesa quickly dumped his bike and ran for one of them, grabbing him
by the hair. The others began throwing rocks at Mesa as they retreated
back toward Mexico. Mesa drew his weapon and fired two rounds across the
border into Mexico. He missed the fleeing men but hit Hernandez, who was
watching the scene from under a concrete bridge about fifty yards away,
in Juarez.

According to the Mexican forensic report, Hernandez was shot
through the left eye, suffering "a direct laceration to the brain,
which ... caused cardiac and respiratory arrest." The medical
examiner found "no evidence of a fight or struggle and concluded
that the victim was surprised by the assailant eliminating any
possibility to defend himself or flee."

Though Mesa never claimed that he was struck by a rock, he said in
a Border Patrol press release that he fired his weapon in self-defense.
He also claimed that Hernandez was among the group of men throwing
rocks. However, Cristobal Galindo, an attorney retained by the Hernandez
family, says that he has seen additional tapes--one from a second
eyewitness and one from a CBP surveillance camera--and neither of them
show Hernandez throwing rocks. In both videos, the rock throwers are
simply running by him.

A lawsuit filed on behalf of the family charges that the Border
Patrol agents denied assistance to the bleeding victim. "U.S.
Border Patrol Agents arrived on the scene, the shooter picked up his
bicycle and then they all left," says the complaint. "No one
took any action to render emergency medical aid to Sergio, leaving him
dead or dying beneath the Paso del Norte Bridge in the territory of
Mexico."

The incident caused uproar in Mexico. Felipe Calderon, then
Mexico's president, called on Washington "to investigate fully
what happened and punish those responsible." Mexico's
secretary of state called the use of firearms to respond to a rock
attack a "disproportionate use of force." And Mexican
prosecutors issued a warrant for Agent Mesa's arrest for his
involvement in the killing; if Mesa ever steps foot in Mexico, he will
likely be arrested and tried for murder.

But the response on the U.S. side of the border was decidedly more
subdued. Alan Bersin, then CBP commissioner, promised a transparent and
fair investigation but otherwise declined to comment. Two years later,
the Justice Department found no wrongdoing by Agent Mesa and said no
charges would be brought against him.

"The team of prosecutors and agents concluded that there is
insufficient evidence to pursue prosecution," a Justice Department
press release read. "This review took into account evidence
indicating that the agent's actions constituted a reasonable use of
force or would constitute an act of self-defense in response to the
threat created by a group of smugglers hurling rocks at the agent and
his detainee." (Incidentally, no evidence was ever made public that
the men involved in the rock throwing were smugglers.)

When the Hernandez family filed a civil suit against the U.S.
government for the wrongful and negligent death of their son, a district
court judge threw out the case, arguing that the family had no standing
to sue because Hernandez was in Mexico when the incident occurred.
According to the decision, "the constitutional constraints on U.S.
officers' excessive use of force and wrongful taking of life did
not apply to the border agent's conduct because, although all of
his conduct occurred solely in the United States, the victim was not a
U.S. citizen and incurred the injury in Mexico."

[ILLUSTRATION OMITTED]

The ACLU filed an amicus brief in support of the appeal. Sean
Riordan, the author of the brief, argues that "it would be a dark
and dangerous precedent for the courts to hold that federal agents can
kill people with impunity merely because they are just across the border
and not U.S. citizens." The case has been appealed to the Fifth
Circuit Court of Appeals and is so unprecedented that it may be headed
for the U.S. Supreme Court.

Of the nineteen cases we have uncovered over the past two years in
which people died at the hands of Border Patrol agents--six on Mexican
soil--no agents have yet been prosecuted. If any of the agents involved
have been relieved of their duties because of their role in the
incidents, that information has not been made available to the public,
and our queries to the CBP on this issue have been denied.

Research for this piece was generously supported with grants from
the Nation Institute Investigative Fund, the Chicago Headline Club, and
the National Press Foundation.

John Carlos Frey is an investigative reporter and documentary
filmmaker focusing on the Latino/a community and the U.S.-Mexico border.
He won the 2012 Scripps Howard Award for his recent PBS series on the
U.S. Border Patrol.

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